Sham @ Kishor Bhaskarrao Matkari vs State Of Maharshtra on 30 September, 2011

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Supreme Court of India
Sham @ Kishor Bhaskarrao Matkari vs State Of Maharshtra on 30 September, 2011
Author: P Sathasivam
Bench: P. Sathasivam, B.S. Chauhan
                                                                       REPORTABLE


                                                           

               IN THE SUPREME COURT OF INDIA


              CRIMINAL APPELLATE JURISDICTION




              CRIMINAL APPEAL NO. 868 OF 2006





Sham @ Kishor Bhaskarrao Matkari                      .... Appellant(s)



            Versus



The State of Maharashtra                              .... Respondent(s)





                            J U D G M E N T 

P. Sathasivam, J.

1) This appeal is directed against the common final

judgment and order dated 03.05.2006 passed by the High

Court of Judicature of Bombay, Bench at Aurangabad in

Criminal Appeal Nos. 183 of 2004 and 391 of 2003 whereby

the High Court dismissed the appeal preferred by the

appellant-accused and allowed the appeal preferred by the

State of Maharashtra, respondent herein and enhanced the

sentence of life imprisonment to death which was imposed by

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the First Ad-hoc Additional Sessions Judge, Jalgaon in

Sessions Case No. 160 of 2001.

2)    Brief facts:



a)    Sham   @   Kishor   Bhaskarrao   Matkari,   the   appellant-



accused was residing with his brother Manohar Matkari (since

deceased) and his family consisting of his wife, Meena (since

deceased) and three children, namely, Akhilesh (since

deceased), Monika (PW-7) and Vishwesh in a rented premises

owned by one Pandurang Patil (PW-3). Manohar, the deceased

was serving in the Railway Mail Service, Bhusawal. Dipak

Narayan Thakur (the Complainant) was their neighbour.

b) On 28.06.2001, at about 9.00 to 9.15 p.m., when the

Complainant came out of his house for collecting the clothes

which were kept for drying, he noticed that some quarrel was

going on between the appellant-accused and his brother

Manohar in their house. He heard the accused saying to his

brother Manohar that you raised hands on me today, I will see

you later. Since it would be a dispute over the household

matter, he neglected and went inside the house. In the

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midnight, at about 3.00 to 3.30 a.m., the Complainant heard

some hue and cry from the house of Manohar. He also heard

the cries of Meena, the wife of Manohar and the noise of

beating and groaning of small child from the house. He also

noticed the smell of leakage of gas and something burning

from the house of Manohar. Immediately, he informed

Pandurang Patil (PW-3) – the landlord and also one Pitamber

Choudhary, who was residing on the upper floor. Thereafter,

all of them proceeded to the house of the deceased-Manohar.

When they were going towards the house of the deceased, they

saw the accused coming out of the house and when they

enquired, the accused told that three thieves entered into their

house and assaulted them. Thereafter, the accused demanded

water for drinking. They also noticed that the hands and

clothes of the appellant-accused were stained with blood.

When they approached near the house of the deceased, they

noticed smoke coming out of the house. Immediately, PW-3,

the landlord, telephoned the police.

(c) On receipt of the information, the Inspector of Police,

Dilip Shankarwar (PW-14) rushed to the place of occurrence

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immediately. He saw the appellant-accused sitting by the side

of water tank and having suffered bleeding injury on his head.

When enquired, the accused narrated the same story that 3 to

4 persons entered into their house and assaulted him, his

brother, his brother’s wife and children and they tried to burn

his brother’s wife and after taking household articles, they fled

away. Since blood was oozing out from his head, PW-14 sent

the accused to the hospital for treatment in a police jeep.

When they entered into the house, they noticed smoke coming

out of the room and Akhilesh, the son of Manohar, was lying

in injured condition on the cot and blood was oozing from his

head. They also noticed that Manohar, his wife Meena,

daughter Monika and son Vishwesh were lying in injured

condition on the floor of the house. They also noticed that

Meena was partially burnt and a stone of big size and a gas

cylinder with tube were lying near her body. PW-14

immediately sent the two injured boys and girl to the

Municipal Hospital, Bhusawal in a police jeep. As Manohar

and his wife were dead, their bodies were sent for post-

mortem. At the same time, spot Panchanama (Ex.24) was

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drawn by PW-14 and he also seized the articles found lying

there including wooden rafter having stains of blood and a big

stone. Since the condition of injured Akhilesh was

deteriorating, he was shifted to Civil Hospital, Jalgaon and he

expired on 29.06.2001. Injured Monika and Vishwesh were

shifted to Civil Hospital, Jalgaon. Later on, both were shifted

to a private hospital at Aurangabad.

(d) A crime was registered being Crime No. 41 of 2001 for the

offences punishable under Sections 302, 307 and 201 of the

Indian Penal Code, 1860 (in short “IPC”). During the course of

investigation, the Investiating Officer recorded the statements

of Pandurang Patil (PW-3) and others. He also seized clothes

of the deceased, Manohar, Meena and Akhilesh. Since the

accused was detected as perpetrator of the crime, he was

arrested. His nail clippings and blood samples were collected.

PW-14 also recorded the statements of Monika and Vishvesh,

the injured children.

(e) After necessary investigation, charge-sheet was laid in

the Court of Judicial Magistrate, First Class, Bhusawal, who

committed the case to the Court of Sessions. The First Ad-hoc

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Additional Sessions Judge, Jalgaon, after examining 16

witnesses including Monika, an injured minor girl as PW-7, by

judgment dated 04/05.03.2003 convicted the appellant-

accused for the offence punishable under Section 302 IPC and

sentenced him to imprisonment for life and to pay a fine of

Rs.25,000/-, in default of payment of fine, to suffer rigorous

imprisonment for two years and also sentenced him to suffer

rigorous imprisonment for seven years for the offence under

Section 307 IPC, and to pay a fine of Rs.1,000/-, in default of

payment of fine, to suffer rigorous imprisonment for three

months and acquitted him for the offence punishable under

Section 201 IPC.

(f) Against the aforesaid judgment, the State of

Maharashtra, respondent herein filed an appeal being

Criminal Appeal No. 391 of 2003 before the High Court of

Judicature of Bombay, Bench at Aurangabad for enhancement

of sentence from imprisonment for life to death and the

appellant-accused also filed appeal being Criminal Appeal No.

183 of 2004. Both the appeals were heard together and by a

common impugned judgment dated 03.05.2006, the High

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Court dismissed the appeal filed by the appellant-accused and

allowed the appeal filed by the State and enhanced the

sentence of life imprisonment to death. Aggrieved by the said

judgment, the appellant-accused has filed this appeal before

this Court by way of special leave petition.

3) Heard Mr. Tara Chand Sharma, learned counsel for the

appellant-accused and Mr. Sushil Karanjkar, learned counsel

for the respondent-State.

4) Learned counsel for the appellant though canvassed the

ultimate conviction imposed by the trial Court and affirmed by

the High Court mainly contended before us with regard to the

death sentence awarded by the High Court. According to him,

in view of several mitigating circumstances highlighted before

the High Court, without adverting to the same, the High Court

awarded the extreme penalty of death sentence which is not

warranted in the facts and circumstances of the case. On the

other hand, learned counsel for the State, by taking us

through the relevant materials, submitted that in view of death

of three persons and causing injuries to two, all in one family,

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the High Court was justified in awarding capital punishment

(death sentence) to the appellant-accused.

5) We have carefully perused all the relevant materials and

considered the rival submissions.

6) Very briefly, let us consider the prosecution case and the

ultimate conviction under Sections 302 and 307 IPC. The

appellant-accused was the real brother of Manohar Matkari-

the deceased and was residing with him in a rented premise

owned by Pandurang Patil, (PW-3). The said Manohar and his

wife Meena were having three children. The incident took

place in the night intervening 28/29.06.2001. Dipak Narayan

Thakur (PW-1) was the neighbour of Manohar in one of the

premises owned by Pandurang Patil, (PW-3) as tenant at the

relevant point of time. According to PW-1, on the said night,

at about 9.00 to 9.15 p.m., when he came out of his house to

collect the clothes which were kept for drying, he noticed that

some quarrel was going on between the accused and his

brother Manohar in their house. In the mid-night, at about

3.00 to 3.30 a.m., PW-1 again heard some hue and cry from

the house of Manohar. He also heard cries of the wife of

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Manohar and the noise of beating and groaning of small child

from the house. He also noticed smell of leakage of gas and

something burning in the house of Manohar. On noticing all

these things, PW-1 rushed to his landlord, Pandurang Patil,

(PW-3) and also woke up one Pitamber Choudhary, who was

residing on the upper floor. It is further seen from his

evidence that he then along with those persons proceeded

towards the house of Manohar and saw the accused coming

out of the house and when they enquired him, the accused

told that three thieves had entered into their house and

assaulted him, his brother, his brother’s wife and their

children. On hearing this, PW-3 informed the police over

phone. The police arrived there within 10 minutes and took

the accused to the hospital as he had sustained head injury.

The police also took all the three children to the hospital in a

police jeep. Thereafter, PW-1 entered the house of Manohar

along with the police officers. They noticed that Manohar and

his wife Meena were lying dead and Meena was partially burnt.

PW-1 narrated the incident to the police which was reduced

into writing and treated as FIR (Ex.P-22).

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7) When the appellant-accused was undergoing treatment

in the hospital, on 30.06.2001, the Police Officer, Zillapeth

Police Station, Jalgaon thought that the accused may not

survive and sent a requisition to Muralidhar Sapkale, (PW-16)

who was the Executive Magistrate working in Treasury Office,

Jalgaon to record his statement. Pursuant to the same,

PW-16 visited the Civil Hospital, Jalgaon and recorded the

statement of the accused which is Ex.73. All were under the

impression that on the death of the accused, the said

statement will be treated as dying declaration. The said

statement, Ex.73, contains confession on the part of the

accused. The prosecution also relied on the statement of

Monika, (PW-7), daughter of Manohar, who has stated to have

seen the part of the occurrence.

8) Learned counsel for the appellant-accused has taken us

through the evidence of PWs-1, 3, 7 and 16 and all other

connected documents. We have already stated that Dipak

Narayan Thakur, (PW-1) is residing in one of the premises

adjoining to Manohar owned by one Pandurang Patil, (PW-3)

as tenant, at the relevant time. PW-1 noticed the first

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occurrence, that is, between 9.00 to 9.15 p.m., namely, at the

time of collecting his clothes which were kept for drying that

some quarrel was going on between the accused and his

brother Manohar. It was he who witnessed the second

incident also, that is, in the mid-night, at about 3.00 to 3.30

a.m., in the house of Manohar. He not only heard the cries of

Manohar but also heard noise of beating and groaning of small

children from the house. He also noticed leakage of gas from

the house of Manohar. It is further seen that on his

information, PW-3, their landlord, and one Pitamber

Choudhary, also joined and noticed the occurrence in the

early morning. When PW-1 and PW-3 proceeded towards the

house of Manohar, they saw the accused coming out of the

house and when they enquired, the accused told that three

thieves had entered into their house and they assaulted him,

his brother, his brother’s wife and their children. They also

noticed blood stains in the hands and clothes of the accused.

PW-1 also informed that when they went inside the house in

the morning along with the police and others, they noticed

that Manohar and his wife Meena were lying dead and Meena

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was burnt to some extent. They also noticed a square sized

stone weighing roughly 25 kgs. near the dead body. The two

injured boys and girl were also taken to the hospital. Dr.

Sandip Ingale (PW-6) and Dr. Sangram Narwade (PW-11), who

conducted the post-mortem, were also examined. They also

noted the injuries of all the three persons. We have already

noted the statement of accused himself to the Executive

Magistrate (PW-16) at the time when he was admitted in the

hospital. Since he was alive, the statement recorded by the

Executive Magistrate had been treated as statement under

Section 164 of the Code of Criminal Procedure, 1973 (in short

“the Code”) and proceeded further. Though the said statement

is not a dying declaration, however, the accused knowing all

the seriousness confessed about the killing of his brother, his

wife and their child and causing injuries to other two children.

There is no reason to disbelieve the version of Monika (PW-7)

who witnessed the occurrence, neigbours and landlord of

Manohar (PWs 1 and 3) as well as the confessional statement

of the accused before the Executive Magistrate. Considering

the opinion of the doctors, (PWs-6 and 11), cause of death and

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recovery of a stone inside the house of Manohar where three

different bodies were lying, we are satisfied that the

prosecution has established its case beyond reasonable doubt

for an offence under Section 302 IPC. The trial Court

considering the fact that the murders were neither pre-

meditated nor pre-planned on the part of the appellant, and a

simple case of land dispute which led to altercation and

murdering of three persons, imposed life imprisonment under

Section 302 IPC and rigorous imprisonment for seven years

under Section 307 IPC. The said conclusion is acceptable.

About Sentence

9) Learned counsel for the respondent-State, by drawing

our attention to the recent decision of this Court in Ajitsingh

Harnamsingh Gujral vs. State of Maharashtra, JT 2011

(10) SC 465 submitted that the award of death sentence is

appropriate in the facts and circumstances of this case. In

that case, the accused was charged under Section 302 IPC for

committing murders of his wife, his son and two daughters

and the trial Court, after finding that four members from the

same family were murdered and it was a rarest of rare case,

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imposed penalty of death upon the accused. The death

sentence was confirmed by the High Court and the matter was

taken up before this Court by way of appeal. This Court, after

adverting to the earlier decisions as regards to award of death

sentence including the principles enunciated in Bachan

Singh vs. State of Punjab, (1980) 2 SCC 684, Machhi Singh

and Others vs. State of Punjab, (1983) 3 SCC 470,

C. Muniappan and Others vs. State of Tamil Nadu, (2010)

9 SCC 567 and various other judgments, agreeing with the

conclusion arrived at by the trial Court and the High Court

and finding that all the requisites for death penalty as

discussed and noted in the various decisions are satisfied,

confirmed the same. Absolutely, there is no quarrel as to the

propositions of law and principles laid down in those decisions

and the ultimate conclusion in Ajitsingh Harnamsingh

Gujral (supra). In the case on hand, the appellant-accused

had no pre-meditated plan or mind to eliminate the entire

family of his brother, he himself slept with the victims on the

fateful night, due to land dispute quarrel started and ended

with murdering three persons. In those circumstances and

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the background and no bad antecedents of the accused, the

above decision relied on by the State is distinguishable and

not helpful to the claim for retaining the death penalty.

10) When the matter was taken up before the High Court,

both by the accused and the State, after thorough analysis,

the High Court confirmed the conviction. As an appellate

Court, the High Court once again analysed the prosecution

evidence and the defence taken by the accused and finally

concurred with the conclusion arrived at by the trial Court

insofar as conviction under Sections 302 and 307 IPC are

concerned. On going through all the materials, we are in

entire agreement with the said conclusion.

11) In the appeal filed by the State for enhancement of

sentence from life imprisonment to death sentence, from the

evidence on record and considering the materials, the High

Court identified the following circumstances for imposing

extreme penalty of death:

“(i) The date and place of incident not disputed.

(ii) In the incident that occurred, admittedly, victim

Manohar, his wife Meenabai and son Akhilesh lost their lives

and as has been established on medical evidence,

undoubtedly, these three victims died homicidal death. In

that, victim Manohar and his wife Meenabai died on the spot

15

having suffered head injuries and in addition to that, so far

as Meenabai is concerned, she suffered burn injuries,

indicating that the assailant i.e. the respondent (original

accused) before the Court, caused burns by setting her on

fire by leaking the gas from Gas Cylinder.

(iii) The assault on victims by the respondent was aimed at

midnight when the victims were fast asleep and as such they

were defenceless, showing that the respondent acted

dastardly and was completely depraved. The nature of the

injuries, which were inflicted on the child, more particularly,

the injuries on his head itself show that how the respondent

acted brutally showing extreme depravity and ruthlessness.

(iv) The respondent was alone in the house during the

time the occurrence took place at midnight. This is, in the

sense, that there was no third person in the house, much

less, having entered the house.

(v) As against this, the Respondent put forth a false story

that 3 to 4 unknown persons entered the house and

committed murders and murderous assault on the victims.

This plea of the respondent (original accused) was found to

be false and misguiding the investigating machinery.

(vi) The respondent (original accused), in his statement

Ex.-73, has clinchingly stated that the victims were done to

death by him, so also the injured children at the time and

place of incident.

(vii) In the early morning, witnesses Dipak Narayan Thakur

and Pandurang Patil noticed the respondent coming out of

his house having his hands and clothes on his person

stained with blood.

(viii) Though the respondent came up with the case that

unknown persons assaulted the victims in the house, he

remained silent in the house, though, in his presence, the

victims were done to death and two small children suffered

serious injuries.

(ix) The respondent did not raise hue and cry, though

according to him, in his presence, unknown persons entered

the house and assaulted the victims. He did not cause

alarm to the persons in the vicinity, thereby exhibiting most

queer and unnatural conduct.

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(x) The witnesses, particularly, witness Dipak Thakur, in

the Midnight, heard cries of a woman groaning in pain and

early in the morning, saw the respondent coming out of the

house with blood on his clothes and hands.

(xi) Both these witnesses Dipak Thakur and Pandurang

Patil stated in their evidence that on that night, no third

person from outside came to the premises, much less,

entered in the house of the victims.

(xii) The respondent, in his statement Ex.-73, which is

accepted and found to be truthful, candidly admitted to have

assaulted the victims acting in a brutal manner out of

vengeance arising out of the dispute over the property.

(xiii) The respondent did not deter, much less felt ashamed

even while assaulting small children of his real brother when

they were caught helpless, as they were sleeping when one of

them was done to death and other two were injured.

(xiv) Admittedly, the earlier incident took place at about

08:30 p.m., which ended after quarrel and some beating by

victim Manohar to the respondent. The later incident

occurred at midnight when the victims were fast asleep. The

respondent assaulted them one by one and what is shocking

is that victim Monika had seen the respondent committing

assault after assault on her father, mother and her brothers

Akhilesh and Vishwesh.

(xv) It is seen that the murders have been committed and

three persons were done to death in ruthlessness, showing

that the respondent was totally depraved of and acted most

beastly.

(xvi) Since the earlier incident took place at 08:30 p.m.,

and the accused, after taking meals at night, remained in

the house and then at midnight, surreptitiously killed one by

one and also caused murderous assault on the victims

showing extreme brutality. This shows that the attack by

the accused was predetermined, so also premeditated.

Therefore, it is a case of cold-blooded murders.”

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12) With the above aggravating circumstances put forth

against the accused, various mitigating circumstances were

also pressed into service and pointed out that the extreme

penalty of death is not warranted. It is pointed out that the

accused is 38 years old and his antecedents are unblemished

and not having any criminal tendency, there can be no

apprehension even of danger to the society, it cannot be ruled

out that rehabilitation of the accused is impossible and it is

not a rarest of rare case causing for extreme penalty of death.

13) Taking into consideration of both aggravating and

mitigating circumstances, the High Court, after finding that

the accused having slept with the victims in the same house

proceeded to assault one after another, it must be said that

the assault was pre-meditated and the accused was

determined to do the same, hence, it cannot be construed that

the accused was on the spur of the moment, after having done

to death his brother, brother’s wife, the accused also gave

murderous assault on their children and noting that it is a

case of extreme culpability concluded that the sentence

awarded by the trial Court of imprisonment of life is

18

inadequate and it is a rarest of rare case where extreme

penalty of death is called for accepted the appeal preferred by

the State and enhanced the penalty of death by hanging.

Conclusion:

14) Since this Court, in series of decisions starting from

Bachan Singh (supra) indicated various aggravating and

mitigating circumstances, there is no need to refer to all those

decisions. Though the appellant caused death of three

persons, he had no pre-plan to done away with the family of

his brother and the quarrel started due to the land dispute

and, in fact, on the fateful night, he was sleeping with the

other victims in the same house. In those circumstances and

other materials placed clearly show that he has no pre-plan or

pre-determination to eliminate the family of his brother. At

the time of the incident, i.e., in the year 2001, the accused was

28 years old and was jobless. He is in jail since 30.06.2001

and in the death cell since the date of the judgment of the

High Court that is on 03.05.2006. It is clear that he remained

in jail for more than 10 years and more than five years in

death cell. The materials placed on record show that the

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antecedents of the accused-appellant are unblemished as

nothing is shown by the prosecution that prior to this

incident, he was indulged in criminal activities. The appellant

had no bad antecedents. We have already concluded that the

murders were not pre-planned or pre-meditated. No weapon

much less dangerous was used in commission of offence. As

pointed out earlier, only on account of property dispute, the

appellant went to the extent of committing murders. This is

clear from the prosecution evidence and the conclusion of the

trial Court. As rightly pointed out by the counsel for the

appellant, there is no reason to disbelieve that the appellant

cannot be reformed or rehabilitated and that he is likely to

continue criminal acts of violence as would constitute a

continued threat to the society. Considering the facts and

circumstances, it cannot be said that the appellant-accused

would be a menace to the society. We are satisfied that the

reasonings assigned by the High Court for awarding extreme

penalty of death sentence are not acceptable. It is relevant to

point out that the trial Court which had the opportunity of

noting demeanour of all the witnesses and the accused

20

thought it fit that life sentence would be appropriate.

However, the High Court while enhancing the same from life to

death, in our view, has not assigned adequate and acceptable

reasons. In our opinion, it is not a rarest of rare case where

extreme penalty of death is called for instead sentence of

imprisonment for life as ordered by the trial Court would be

appropriate.

15) In the light of the above discussion, while maintaining

the conviction of the appellant-accused for the offence under

Section 302 IPC, award of extreme penalty of death by the

High Court is set aside and we restore the sentence of life

imprisonment as directed by the trial Court. The appeal is

allowed in part to the extent mentioned above.

……………………………………J.

(P. SATHASIVAM)

……………………………………J.

NEW DELHI;                                    (DR. B.S. CHAUHAN) 

SEPTEMBER 30, 2011.                     





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